Equal pay, but there’s no rush: court appeal by unions

As long as female employees can eventually achieve the same level of pay as men in comparable jobs, the fact that it takes them three times longer to get there does not create gender inequality, an Ontario court has ruled.

In its decision, the court found that the province’s Pay Equity Act requires only equality in ultimate outcomes for wage advancements, not in the time it took to achieve them. The judges, however, added that the act itself could be vulnerable to a Charter of Rights challenge if one were pressed — possibly presaging future tests of pay-equity laws across Canada.

In a decision pay-equity advocates have been waiting years for, a panel of three Ontario Superior Court judges rejected appeals by the Canadian Union of Public Employees over pay scales that require those in female job classifications to work up to three years before reaching the top pay rate while those in comparable male classifications can reach the top rate in one year.

“It really is an outrageous decision,” said Mary Cornish, a pay-equity law specialist who represented two CUPE locals in the case.

“Women didn’t make the same at the start of the grid or as they moved along the grid. The only place they did make the same was at the end of the grid and the court said that was OK.”

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The union said the discrepancy meant workers at hospitals and schools in female-classified jobs, such as clerical where most workers are female, made about $3,000 less over three years than male- classified jobs, such as janitorial.

Court heard that a Health Records Clerk, a female job class, would earn $3,924 less over the first two years of employment than the Storekeeper Helper position, which is a male job class.

“The whole structure of these unequal grids is a feature of systemic discrimination,” said Ms. Cornish.

At issue were two appeals against Lakeridge Health Corporation, one of province’s largest community hospitals with sites in Oshawa, Whitby, Bowmanville and Port Perry, and the York Region District School Board, which runs schools north of Toronto.

At the hospitals, the discrepancy was between the largely female clerical unit and the largely male service unit; at the schools, it was clerical and technical units, which are mostly women, and the custodial unit, which is mostly men.

“Service unit employees move more quickly through the job grid than clerical unit employees,” the court agreed. It took nine months in the male field and 24 months in the female at the hospitals.

At the schools, the four-step wage grids saw clerical employees reach the maximum rate after three years while the custodians had three steps allowing the maximum rate after one year.

The provincial Pay Equity Hearings Tribunal had previously rejected the complaint, ruling employers were in compliance with the Pay Equity Act as long as they provide both groups a comparable top rate.

“The tribunal reached a reasonable decision, in light of the legislative scheme it had to interpret. Its reasons are clear and intelligible,” the divisional court judges ruled last week, but then warned of Charter vulnerability.

CUPE is considering what to do next, said Ms. Cornish.

“There is widespread noncompliance with the Pay Equity Act in the province and we need adjudicative bodies to enforce the act and to take action when problems arise,” said Ms. Cornish.

Constance Backhouse, a law professor at the University of Toronto, said the case highlights a wider problem of a nationwide gender wage gap not fixed despite legislation.

“We have not achieved equality of pay despite these statutes being on the books for decades now. What’s happened? Why did we fail to make men and women equal in the workplace? We’re still rooted in a 19th-century thinking about women in the workplace. It’s shocking.”

Aaron Lazarus, spokesman for Lakeridge Health, declined to discuss the specifics of the case but said all workers are respected regardless of gender.

“Our entire health-care team is made up of women and men who give their all every day to improve the quality of health care for Durham families. We have a tremendous respect for all the work they do every single day on behalf of their friends, families and neighbours who come through our doors,” he said.

Neither the school board nor CUPE returned calls by press time Monday.